President Biden announced new steps by the Department of Health & Human Services (HHS) through its Centers for Medicare & Medicaid Services (CMS), to improve the quality and safety of nursing homes to protect vulnerable residents and to crack down on bad actors, during his State of the Union address last week.
Prior to the speech, the Administration sent out a fact sheet illustrating its “commit[ment] to these urgent actions as first steps toward fulfilling a broader commitment to ensure taxpayer dollars go toward the safe, adequate, and respectful care seniors and people with disabilities deserve—not to the pockets of predatory owners and operators who seek to maximize their profits at the expense of vulnerable residents’ health and safety.” The Administration states these reforms are intended to ensure that:
- “Every nursing home provides a sufficient number of staff who are adequately trained to provide high-quality care;
- poorly performing nursing homes are held accountable for improper and unsafe care and immediately improve their services or are cut off from taxpayer dollars; and
- the public has better information about nursing home conditions so that they can find the best available options.”
The COVID-19 pandemic highlighted many of the deficiencies that exist in the regulation and oversight of the nursing home industry.
Over the last two years, more than 200,000 residents and staff in nursing homes have died of COVID-19, representing nearly a quarter of all COVID-19 deaths in the United States.
In response, the new measures will include continued COVID-19 testing in long-term care facilities, continued COVID-19 vaccinations and boosters in long-term care facilities, strengthening requirements for on-site infection preventionists, enhancing requirements for pandemic and emergency preparedness, and integrating pandemic lessons into nursing home requirements.
In addition, CMS is launching four new initiatives that are purported to ensure that residents get the quality care they need. These initiatives are intended to ensure adequate staffing, dignity and safety in their accommodations, and quality care:
- Establish a Minimum Nursing Home Staffing Requirement. The adequacy of a nursing home’s staffing is the measure most closely linked to the quality of care residents receive. For example, a recent study of one state’s nursing facilities found that increasing registered nurse staffing by just 20 minutes per resident day was associated with 22% fewer confirmed cases of COVID-19 and 26% fewer COVID-19 deaths. CMS intends to propose minimum standards for staffing adequacy that nursing homes must meet. CMS will conduct a new research study to determine the level and type of staffing needed to ensure safe and quality care and will issue proposed rules within one year. Establishing a minimum staffing level ensures that all nursing home residents are provided safe, quality care, and that workers have the support they need to provide high-quality care. Nursing homes will be held accountable if they fail to meet this standard.
- Reduce Resident Room Crowding. Most nursing home residents prefer to have private rooms to protect their privacy and dignity, but shared rooms with one or more other residents remain the default option. These multi-occupancy rooms increase residents’ risk of contracting infectious diseases, including COVID-19. CMS will explore ways to accelerate phasing out rooms with three or more residents and to promote single-occupancy rooms.
- Strengthen the Skilled Nursing Facility (“SNF”) Value-Based Purchasing (“VBP”) Program. The SNF-VBP program awards incentive funding to facilities based on quality performance. CMS has begun to measure and publish staff turnover and weekend staffing levels, metrics which closely align with the quality of care provided in a nursing home. CMS intends to propose new payment changes based on staffing adequacy, the resident experience, as well as how well facilities retain staff.
- Reinforce Safeguards against Unnecessary Medications and Treatments. Thanks to CMS’ National Partnership to Improve Dementia Care in Nursing Homes, the nation has seen a dramatic decrease in the use of antipsychotic drugs in nursing homes in recent years. However, inappropriate diagnoses and prescribing still occur at too many nursing homes. CMS will launch a new effort to identify problematic diagnoses and refocus efforts to continue to bring down the inappropriate use of antipsychotic medications.
Skeptics of the plan suggest that although the motivation is worthy, it undercuts the argument that there already exists minimum/sufficient staffing requirements in jurisdictions around the country. In jurisdictions where minimum staffing requirements do not currently exist, concern persists around what the minimum staffing levels will be, how those levels are determined (and by whom), and whether a one-size-fits-all approach will let too many nursing- home operators off the hook.
Lobbying efforts are also of concern to advocates and attorneys whenever legislation or regulation is proposed, where past efforts to regulate the nursing home industry have been watered down by the highest bidder. Whenever regulations are imposed, nursing homes decry the increased costs necessary to comply with the regulations designed to ensure they provide adequate staffing and care, regardless of how profitable the nursing homes are.
Minimum staffing levels also don’t necessarily equate to sufficient staffing levels based on the acuity of the residents. Will the proposed CMS study match individual needs with staffing levels, as it currently requires? Or will it propose a minimum staffing level that corresponds with some other measurement?
Federal regulations already require that nursing facilities have sufficient nursing staff with the appropriate competencies and skills sets to provide nursing and related services to assure resident safety and attain or maintain the highest practicable physical, mental, and psycho-social well-being of each resident as determined by resident assessments and individual plans of care and considering the number, acuity, and diagnoses of the facility’s resident population in accordance with the facility assessment. 42 C.F.R.§483.35.
How, if at all, will any new guidelines proposed as a result of the CMS study deviate from that standard? Only time will tell.
Bedsore.Law leaves no stone unturned in our pursuit against understaffed and underfunded nursing homes around the country. Our founding partner Ernest Tosh is a preeminent authority on nursing home operations. He’s testified about industry-wide financial and staffing practices to the U.S. Congress and to juries throughout the country. Ernest was also recently featured in a Vice News nursing home investigation on how nursing homes hide profits at the expense of their residents.
Our founding partners have over 35 years of combined experience holding nursing homes accountable for causing painful and dangerous Stage III and IV bedsores- it’s what we specialize in. If you or your loved one suffered from a bedsore in a nursing home, contact us to discuss your options. There are time-sensitive issues that could bar your claim if you wait.
Subscribe to our news to stay updated on bedsore law and related topics.